Amarendra Dhari Singh v. Directorate of Enforcement

15. It is further submitted by the Ld. Sr. counsel for the petitioner that the petitioner is a member of Rajya Sabha from Bihar whose turn expires in the year 2026. It is further submitted by the Ld. Sr. counsel that the petitioner is in the business of fertilizer trading and consultancy and is a tax payee. He further submitted that there is not even an iota of allegation by the ED that the petitioner misused his position as a member of the Standing Committee of Fertilizers. It is further submitted by the Ld. Sr. counsel that the petitioner has travelled overseas approximately 90 times since the receipt of first notice in FEMA enquiry on 03.03.2011 and has duly returned to the country despite pendency of various enquiries and investigation so by no stretch of imagination it can be said that the petitioner is a flight risk.

16. It is further submitted by the Ld. Sr. counsel that this Court on two occasions has permitted the petitioner to travel abroad for medical treatment despite opening of LOC against him and the registration of the FIR. It is further submitted by the Ld. Sr. counsel that there are no chances of petitioner tampering with the evidence or influencing the witnesses as all the evidence in the present case is documentary in nature and in possession of the investigating agency. It is further submitted that raids have been conducted at the residence and office of the petitioner and all the documents and the digital devices like computers, lap tops, hard disk were either seized or duplicated. It is further submitted that search and seizure was conducted by the IT department between 30.06.2019 to 05.07.2019. The search was also conducted by the respondent in relation to FEMA enquiry on 15.10.2020 and on 19.05.2021 by the CBI in relation to the present FIR. It is further submitted that on 02.06.2021, the respondent conducted raid at the petitioner’s residence in the present ECIR. Ld. Sr. counsel contended that all the documents are in possession and custody of the investigating agency and he placed reliance on State of Maharashtra Vs. Nainmal Punjaji Shah (1969) 3 SCC 904 and Manoranjana Sinh Vs. CBI (2017 5 SCC 218.

17. It is further submitted by the Ld. Sr. counsel for the petitioner that simply because the petitioner is a Member of Parliament or a Member of Standing Committee of Fertilizers, it does not disentitle him to any relief from this Court as no misconduct has been attributed to him. It is further argued that the position of the petitioner in the society shows that he has deep roots and there are no chances of his running away. It is further submitted by the Ld. Sr. counsel that it has been alleged that the petitioner helped one Sushil Kumar Pachisia to flee from the country which is totally false and baseless. It is submitted by the Ld. Sr. counsel that these allegations have been made on the basis of Whatsapp messages recovered from the petitioner’s phone seized during the search conducted in October 2019 in the FEMA enquiry but it is pertinent to note here that the petitioner became a Member of Parliament in March, 2020.

18. It is further submitted by the Ld. Sr. counsel that the petitioner never helped anybody connected with the case flee the country and the allegations against the petitioner of helping Sushil Kumar Pachisia are false and baseless. It is further submitted that Sushil Kumar Pachisia has been ordinarily residing abroad since 2005-2006 and he was available to the IT department and ED during 2019-2020 and even an LOC was opened by the IT against him and only after the said LOC lapsed only then the said Susheel Kumar went abroad. It is further submitted by the Ld. Sr. counsel that if ED required the presence of Sushil Kumar, it could have opened LOC against him as has been done against the petitioner. It is further submitted that the petitioner has not in any way assisted the said Susheel Kumar in fleeing the country in violation of any rule of law and has only made a recommendation for extension of airport facilities to him and the same cannot be said to be influencing a witness.

19. It is further submitted by the Ld. Sr. counsel for the petitioner that mere gravity of the offence or status of an accused is no ground to deny bail. Reliance has been placed upon HB Chaturvedi Vs. CBI 2010 SCC Online Del 2155 and R. Vasudevan V. CBI 2012 SCC OnLine Del 130. It is further submitted by the Ld. Sr. counsel that the twin conditions U/s 45 PMLA are not applicable and the present application has to be decided on the basis of Section 439 Cr.P.C. It is further submitted by the Ld. Sr. counsel that in Nikesh Tarachand Shah Vs. Union of India (2018) 11 SCC 1 it has been held that the twin conditions U/s 45 PMLA to be unconstitutional and violative of Articles 14 & 21 of the Constitution on various fronts. Neither the Finance Act, 2018 nor 2019 revived the twin conditions as were struck down by the Hon’ble Supreme Court. Reliance has been placed on Sai Chandrasekhar Vs. Directorate of Enforcement (2021) SCC OnLine Delhi 9086 (it has not been stayed by the Supreme Court), Prakash Gurbaxani Vs. Directorate of Enforcement MANU/PH/0484/2021 (it has not been stayed by the Supreme Court.), Upender Rai Vs. Directorate of Enforcement (2019) SCC OnLine Del 9086 (Supreme Court stay only on release of the accused.)

20. It is further submitted by the Ld. Sr. counsel that the stay of the Hon’ble Supreme Court in Upender Rai [SLP (Crl.) Diary No. 5150/2020 order dated 03.06.2020] is only of the operation of the order in terms with release of the accused there in on bail. It is further submitted by him that the said order is distinguished from the order passed by the Hon’ble Supreme Court in ED Vs. Shivinder Mohan Singh [SLP Crl. No. 3474/2020 order dated 31.07.2020.] It is further submitted by him that the stay passed by the Hon’ble Supreme Court only operates inter se the parties and does not create a vacuum in the legal position. He placed reliance on Principal Commissioner of C. Ex., Delhi-I V. Space Telelink Ltd. 2017 (355) ELT 189 (Del), Shree Chamundi Mopeds Ltd. Vs. Church of South India Trust Association CSI Cinod Secretariat, Madras (1992) 3 SCC 1.

21. It is further submitted by the Ld. Sr. counsel for the petitioner that the proviso of Section 45 of the PMLA provides that in case of sick person, bail should be granted to the person arrested.

22. On the other hand, it is submitted by the Ld. ASG that the accusation against the petitioner are serious in nature and he is involved in money laundering which is a serious economic offence and in view of the Supreme Court of India, the economic offenders constitute a class apart and be visited with a different approach in the matter of bail. It is further submitted by the Ld. ASG that the petitioner is a sitting Rajya Sabha MP and is a Member of Parliamentary Standing Committee of Fertilizers and the present offence pertains to generation of proceeds of crime while committing the offence in the import of fertilizers. It is further argued by the Ld. ASG that the accused is a powerful and influential person and there is all likelihood of the petitioner tampering with the evidence and the evidence of the witnesses to whom the cash was paid on behalf of the accused is yet to be recorded. It is further submitted that the allegations of malafide are wholly irrelevant to the proceedings of PMLA which is concerned with the stand alone offence of money laundering. It is further submitted by the Ld. ASG that in a case when the information received discloses a cognizable offence in that case no preliminary enquiry is necessary and there is no violation of the condition as laid down by the Hon’ble Supreme Court in “Lalita Kumari” case. It has also been argued by the Ld. ASG that even anonymous complaint can be the basis of registering of FIR and even complete stranger can initiate criminal proceedings. It is further submitted by the Ld. ASG that the petitioner in the CBI RC has been clearly mentioned as an intermediary to channelize the ill-gotten money. It is further submitted by the Ld. ASG that attacking of Rajiv Saxena’s credibility cannot take away the existence of documentary and digital evidences available against the petitioner and various statements of said Rajiv Saxena have been recorded U/s 50 of PMLA, wherein he has stated that the invoices of different companies were raised on the instructions of either Pankaj Jain, Sanjay Jain or the present petitioner. It is further submitted that the said Rajiv Saxena is only confirming the facts which are available in documentary and digital evidence with the ED pursuant to the investigation. During the course of argument, the Ld. ASG submitted that prosecution complaint is ready and would be filed by Saturday i.e. 30.07.2021.

23. It is further submitted by the Ld. ASG that during the analysis of the data recovered from one of the phones of the petitioner which was seized during the course of search in October 2019 in proceedings under FEMA, certain Whatsapp messages showed that he had helped one Sushil Kumar Pachisia to flee from India by getting favour as a Member of Parliament by misrepresenting him as his manager and got him VIP treatment at the airport. It is further submitted that record/evidences received from Income- Tax which were collected by the Income Tax during the course of its searches, and statement of various persons recorded U/s 50 of PMLA, wherein these persons when confronted with the said records/evidence have confirmed the veracity of the said record evidencing transfer of proceeds of crime in India in cash to the petitioner and his associates.

24. It is further submitted by the Ld. ASG that the petitioner has not cooperated in the investigation and has given evasive reply. It is further submitted by the Ld. ASG that the petitioner’s health condition is stable and does not warrant bail on medical ground. It is further submitted by the Ld. ASG that the medical condition of the petitioner is manageable which is evident from his own pleading as he has traveled abroad for business, leisure and medical treatment over 90 times. It is further submitted by the Ld. ASG that the petitioner has been medically examined by a competent doctor every 48 hours and necessary medical help was provided and he was even taken to RML Hospital on 09.06.2021 for his thorough medical examination and the medical condition of the petitioner was confirmed to be stable by the competent doctors of RML Hospital.

25. Ld. ASG further submitted that in terms of the twin conditions prescribed in Section 45 of the PMLA, this Court could only grant bail to the petitioner after recording a satisfaction to the effect that there are reasonable grounds for believing that the petitioner is not guilty of the alleged offences and that while on bail he is not likely to commit any offence.

26. The Ld. ASG further submitted that though in Nikesh Tarachand Shah vs. Union of India and another (2018) 11 SCC 1 Section 45(1) of the PMLA, as it then stood, had been declared unconstitutional by the Supreme Court but the defect pointed out by the Supreme Court which formed the basis to declare Section 45(1) to be unconstitutional had since been cured by the Legislature through its Act No.13 of 2018 which came into force from 19.04.2018; as per Act No.13 of 2018 the offending expression “punishable for a term of an imprisonment of more than three years under Part A of the Schedule” has been substituted with “under this Act”; in view of the afore amendment the twin conditions prescribed under Section 45(1) of the PMLA stood revived; the amended Section 45(1) of the PMLA has not been challenged by the petitioner and therefore, this Court is bound by the aforesaid twin conditions prescribed therein; in terms of the law laid down by the Supreme Court in Nagaland Senior Government Employees Welfare Association and others vs. State of Nagaland and others, (2010) 7 SCC 643 a statute is deemed to be constitutionally valid till struck down by a competent Court; in Molar Mal (dead) through L.Rs. v. M/s. Kay Iron Works (Pvt.) Ltd., (2000) 4 SCC 285 the Supreme Court had held that where the constitutional validity of a provision was not under challenge such provision would bind the Court; in Ashutosh Gupta vs. State of Rajasthan (2002) 4 SCC 34 the Supreme Court has opined that where the challenge is made to a statutory provision allegations in the petition should be specific, clear and unambiguous and that there is a presumption in favour of the constitutionality of an enactment with the burden upon the person who attacks the provision to show that the same is unconstitutional; the Delhi High Court in Upendra Rai vs.Enforcement Directorate (2019) SCC Online Delhi 9086 and Dr.Shivinder Mohan Singh vs. Directorate of Enforcement 2020 SCC Online Del 766 held that Act 13 of 2018 would not revive or resurrect the twin conditions for grant of bail contained in Section 45(1) of the PMLA and on challenge before the Supreme Court such orders passed by the Delhi High Court have been stayed.

27. The PMLA, as enacted by the Parliament in the year 2002, contained Section 45(1) which read as under:- “Section 45. Offences to be cognizable and non- bailable.— (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no person accused of an offence punishable for a term of imprisonment of more than three years under Part A of the Schedule shall be released on bail or on his own bond unless—

(i) the Public Prosecutor has been given a opportunity to oppose the application for such release; and

(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail: Provided that a person, who, is under the age of sixteen years, or is a woman or is sick or infirm, may be released on bail, if the Special Court so directs: Provided further that the Special Court shall not take cognizance of any offence punishable under Section 4 except upon a complaint in writing made by—

(i) the Director; or

(ii)any officer of the Central Government or a State Government authorised in writing in this behalf by the Central Government by a general or special order made in this behalf by that Government.”

28. The quoted provision imposed two conditions before bail could be granted to a person accused of an offence punishable for a term of imprisonment for more than three years under Part A of the Schedule attached to the PMLA. These conditions were that before grant of bail the Public Prosecutor was required to be given an opportunity to oppose the plea for bail and that where the Public Prosecutor opposed such plea the Court could order release of the accused on bail only after recording a satisfaction that there were reasonable grounds for believing that the person to be released was not guilty of the offence he was accused of and that while on bail he was not likely to commit any offence.

29. The constitutional validity of the afore quoted provision imposing the twin conditions for grant of bail was questioned before the Supreme Court in Nikesh Tarachand Shah's case (supra) and the Supreme Court, after holding that the prescribed twin conditions for release on bail were violative of Articles 14 and 21 of the Constitution of India declared Section 45(1) of the PMLA, to that extent, to be unconstitutional. The operative part of judgment of the Supreme Court is as follows:-

30. By Act 13 of 2018 Section 45(1) of the PMLA was sought to be amended w.e.f. 19.04.2018. Through such amendment the words “punishable for a term of imprisonment of more than three years under Part A of the Schedule” as occurring in Section 45(1) before the judgment of the Supreme Court in Nikesh Tarachand Shah's case (supra) were substituted with the words “under this Act”. As per learned ASG, after such amendment, the defect on the basis of which the Supreme Court had declared Section 45(1) of the PMLA to be unconstitutional was cured and consequently the twin conditions prescribed in Section 45(1) stood revived.

31. The declaration by the Supreme Court in Nikesh Tarachand Shah's case (supra) would render the twin conditions prescribed in Section 45(1) of the PMLA for release of an accused on bail to be void in toto; such conditions have to be disregarded of any legal force from its inception; they cease to be law; the same are rendered inoperative and that they are to be regarded as if they had never been enacted. That being so, the twin conditions for grant of bail under Section 45(1) of the PMLA as are now sought to be pressed into service by the ED cannot be considered to have revived or resurrected only on the prospective substitution of the words “punishable for a term of imprisonment of more than three years under Part A of the Schedule” with the words “under this Act” especially without there being any amendment with regard to the twin conditions for grant of bail which had specifically been declared to be unconstitutional as also in the absence of any validating law in this regard with retrospective effect.

32. The Bombay High Court vide order dated 06.06.2018 in Bail Application No. 286 of 2018 – Sameer M. Bhujbal vs. Assistant Director Directorate of Enforcement and another, a similar objection raised on behalf of the ED was considered and repelled through the following observations:-

33. Observations made in Sameer M. Bhujbal vs. Assistant Director Directorate of Enforcement and another was considered and followed by the Bombay High Court in its judgment dated 25.03.2020 rendered in Bail Application No.1322 of 2020 – Deepak Virendra Kochhar vs. Directorate of Enforcement and another. Observations in this regard are as follows:-

34. While considering the applicability of twin conditions this Court made the following observations in Sai Chandrasekhar vs. Directorate of Enforcement 2021 SCC Online Delhi 1081:

35. This issue has also been dealt in a similar manner by the Madhya Pradesh High Court in M.Cr.C. No.34201/2018 - Dr.Vinod Bhandari Vs. Assistant Director, Directorate of Enforcement, decided on 29.08.2018 and the High Court of Patna in Criminal Miscellaneous No.41413 of 2019 – Ahilya Devi vs. The State of Bihar and others, decided on 28.05.2020 and in Parkash Gurbaxani Vs. The Directorate of Enforcement through Assistant Director in CRM-M-12901-2021(O&M) decided on 02.06.2021.

36. Reliance by the respondent has been placed on Bimal Kumar Jain and Naresh Jain Vs. Directorate of Enforcement BAIL APPLN.112/2021 and CRL. M. (BAIL) 81/2021; BAIL APPLN. 122/2021. The said bail application has been decided only on the basis of parameters as laid down U/s 439 of the Cr.PC. Therefore, in view of the above, the provisions of Section 439 of Cr.P.C and the conditions therein will apply in the case of petitioner for grant of bail.

37. While dealing with the bail application it is not in dispute that three factors have to be seen namely i) flight risk, ii) tampering evidence, iii) influencing witnesses.

38. The Hon’ble Supreme Court in Niranjan Singh & Anr. Vs. Prabhakar Rajaram Kharote and Others (1980) 2 SCC 559 has held that at the stage of granting bail detailed examination of evidence and elaborate documentation of the merits of the case should be avoided, so that no party should have the impression that his case has been prejudiced. In the instant case, the petitioner has been investigated under FEMA and Income Tax prosecution has also been lodged against him in regard to the same allegations. It is not the case of the department that the petitioner has not joined the investigation but what has been averred is that he has given some evasive answers, no details provided. During the course of the arguments, it was submitted by the Ld. Sr. counsel for the petitioner that the prince of the department’s case is one Rajiv Saxena who has made statements against the petitioner. The Ld. Sr. counsel for the petitioner has also argued that said Rajiv Saxena was once made an approver by the department but subsequently department moved for cancellation of the same. This is not the stage, to comment as to what would be the fate of the statements given by said Rajiv Saxena and the other statements recorded during the investigation. Their veracity would be tested during the course of the trial. As per the department, the raid was conducted at the office and premises of the petitioner. All the digital devices i.e. laptops, mobile phone etc. have already been seized and the other evidence seized is documentary in nature and are in the custody of the prosecuting agency. In the case of Sukhram Vs. State (CBI) Crl.M. Appeal No. 2407/1996 decided on 14.10.1996, similar apprehension expressed by the counsel for CBI that the accused could tamper with evidence was negatived by the Hon’ble High Court of Delhi. Moreover, if the applicant/accused is at any stage required for investigation, he can be called to join investigation. The correctness or otherwise of the allegations as to whether the applicant/accused had received and laundered proceeds of crimes can only be looked into during the course of trial which is likely to take time. It is also not the case of the department that the petitioner at any point of time tried to tamper with the evidence or threatend any witness except one contention that the petitioner helped one Sushil Kumar Pachisia in fleeing from India by getting favours as a Member of Parliament. In this regard it has been submitted by the Ld. Sr. counsel for the petitioner that during the relevant time the petitioner was not the Member of Parliament and he became member of Parliament in the year

2020. In reply the department has submitted that the said Sushil Kumar Paschisia was summoned U/s 50 but he has expressed his inability to travel to India under the prevailing circumstances but it has not been spelled out as to what action has been taken to bring him back to India or he is totally avoiding to come back or whether any LOC has been opened in his name. There are no specific allegations that the petitioner in any manner over the last many years since the filing of the complaint way back in the year 2013 had in any manner tried to tamper with the evidence or threaten the witnesses.

39. It has been argued by the Ld. ASG that economic offences constituted a class apart and needed to be visited with a different approach and reliance was placed on the judgments of Hon’ble Supreme Court in State of Gujarat v. Mohanlal Jitamalji Porwal, (1987) 2 SCC 364; Y.S. Jagan Mohan Reddy v. CBI, (2013) 7 SCC 439; Anil Kumar Yadav v. State (NCT of Delhi) (2018) 12 SCC 129; Sunil Dahiya v. State (Govt. of NCT of Delhi) 2016 SCC OnLine Del 5566; Bhupinder Singh v. Unitech Ltd. Civil Appeal No. 10856/2016 order dated 18.03.2021 and also in Rohit Tandon v. Directorate of Enforcement (2018) 11 SCC 46. However, in this regard, reference may be made to the judgment of the Hon’ble Supreme Court in P. Chidambaram v. Directorate of Enforcement (2020) 13 SCC 791 wherein it was observed as under:

40. Thus it was held that even if the allegation was one of grave economic offence, it was not a rule that bail should be denied in every case.

41. Regarding the flight risk, it is the admitted case of the department that over the period of last 10 years the petitioner has gone abroad atleast 90 times for various purposes. In this regard, it has been submitted by the Ld. Sr. counsel for the petitioner that the petitioner is a sitting member of Rajya Sabha and owns substantial movable and immovable property in India. It is further submitted that despite the pendency of various enquiries and investigation, the petitioner has returned to the country. The petitioner was even allowed to travel abroad by this Court twice subject to conditions despite the opening of LOC against him and the registration of the FIR by the CBI. Therefore, when such is the conduct of the petitioner, he cannot be said to be a flight risk. Moreover, nothing has been placed on record that the petitioner/accused is a flight risk nor much emphasis was laid on this during the argument.

42. Now as far as the medical condition of the petitioner is concerned, he is suffering from cancer since 2002 which is not denied by the department. The petitioner is under the treatment of one doctor namely Morton Coleman of U.S. and he visits the doctor for his follow up from time to time. It is on record that the petitioner was granted special permission to travel to America by the American Embassy aided by the Ministry of External Affairs and his sister was also allowed to travel with him due to his medical condition. Looking into the medical condition of the petitioner, this Court permitted the petitioner to travel to USA for his medical treatment subject to conditions, despite the registration of the FIR. The medical report in regard to the petitioner’s health was also called form RML hospital and vide its report dated 19.07.2021, it has been stated that his medical records were reviewed by the medical board and he was found to be a known case of Hodgkin’s Lymphome since 2002, Right bundle branch block, mild stress inancid ischaemia (infero-apical region on stress-MPI), hyper tension, diabetes mellitus, obstructive sleep apnea, treated graves decease, benign protest enlargement. No doubt, as argued by the Ld. ASG, the condition of the petitioner is not serious and do not require immediate attention and his present condition is manageable, but one also cannot lose sight of the fact that the petitioner is a known case of cancer and is suffering from various aforementioned diseases for which he is taking medicines as submitted by Ld. Sr. counsel for the petitioner.

43. The petitioner is in J.C. since 02.06.2021. Therefore, in view of the entire facts and circumstances, I am of the considered opinion, that the petitioner is entitled to be released on bail on merits as well as on medical grounds. Accordingly, the petitioner shall be released on bail on the following terms and conditions:-

(i) On furnishing personal bond in the sum of Rs. 10,00,000/- with one surety of the like amount to the satisfaction of the Trial Court.

(ii) He shall not leave the country without permission of the Special

(iii) He shall make himself available for investigation, if required by the prosecuting agency.

(iv) He shall not influence the prosecution witnesses directly or remotely.

44. The bail application is disposed of accordingly.

45. Nothing stated hereinabove shall tantamount to the expression of any opinion on the merits of this case. CRL.M.A. 9959/2021

46. In view of the order passed in the above Bail Appln. 2293/2021, the CRL.M.A. 9959/2021 has become infructuous and is accordingly disposed of.

RAJNISH BHATNAGAR, J AUGUST 05, 2021 Sumant